[2016] FWC 4575 [Note: An appeal pursuant to s.604 (C2016/4652) was lodged against this decision - refer to Full Bench decision dated18 December 2016 [[2016] FWCFB 4652] for result of appeal.] |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr. Fahmid Rahman
v
Commonwealth of Australia as represented by the Australian Taxation Office
(U2015/11672)
DEPUTY PRESIDENT BULL |
SYDNEY, 8 JULY 2016 |
Application for relief from unfair dismissal, breach of the Australian Public Service Code of Conduct, misconduct, false job applications, standard of proof, valid reason found to exist.
[1] On 7 September 2015, Mr Fahmid Rahman (the applicant) made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Rahman’s employment was terminated by the Commonwealth of Australia as represented by the Australian Taxation Office (ATO/the respondent) on 2 September 2015.
[2] Following an external independent investigation, Mr Rahman was terminated for breach of the Australian Public Service Code of Conduct 1 (the Code of Conduct). The breach involved the alleged submission of false job applications at the ATO.
[3] The originating application Form (F2) named the “Australian Taxation Office” as the employer. Pursuant to the decision in [2015] FWC 8074, the name of the respondent has been amended to reflect the correct employer being the Commonwealth of Australia as represented by the Australian Taxation Office.
[4] This matter was not subject to any conciliation as occurs through the process established by the Fair Work Commission (the Commission) as Mr Rahman maintained that the only remedy sought would be that of reinstatement, which was not considered an option by the ATO. On the basis that the ATO would not reinstate Mr Rahman as an agreed resolution, the parties requested that the matter be arbitrated 2. The matter was subsequently allocated to me for determination.
[5] Preliminary hearings with respect to the production of documents were heard on 23 and 30 November 2015, and decisions [2015] FWC 8074 and [2015] FWC 8281 were issued with respect to these matters.
[6] The substantive matter was heard on 3 December 2015, 28 January 2016 and 8 March 2016.
[7] Mr Anthony Rogers (for the applicant) and Mr Trent Glover (for the respondent), both of Counsel were granted leave to appear pursuant to s.596(2)(a) of the Act.
Background
[8] Mr Rahman commenced employment with the ATO on 28 February 2008, as an Australian Public Service Officer L4 in the role of Compliance Officer and was terminated from his employment on 2 September 2015, following a determination that he had breached the ATO Code of Conduct.
[9] The ATO engaged the legal firm Ashurst Australia to conduct an independent external investigation into the alleged breach, which concluded that Mr Rahman had breached the Code of Conduct in respect to the Code’s requirement to:
● Behave honestly and with integrity;
● Not to provide false or misleading information; and
● Behave at all times in a way that upholds the APS (Commonwealth Public Service) values and integrity.
[10] The finding was that Mr Rahman had both completed and submitted or was instrumental in the submission of ‘false job applications’. 3
[11] Mr Rahman denies any such action and therefore makes no submission in respect to remorse or contrition regarding the alleged misconduct. Mr Rahman sought reinstatement as a remedy.
[12] For a period of four months between March 2015 and July 2015, Mr Rahman was suspended from duty on full pay in accordance the Public Service Regulations 1999 (Cth). During Mr Rahman’s suspension from work he initiated a number of proceedings in the Federal Court.
[13] Upon termination, Mr Rahman was paid five weeks’ payment in lieu of notice as well as a back-payment for a period of time while he was suspended without pay.
[14] As stated above, Mr Rahman seeks reinstatement as a remedy, and was unemployed at the time of hearing. Mr Rahman advised the Commission at the hearing on 28 January 2016 that he had sought alternative employment since 3 December 2015. 4
[15] The following chronology of events leading to Mr Rahman’s termination of employment were either agreed between the parties or not otherwise contested.
Facts/chronology
[16] Mr Rahman filed a general protections application against the ATO in the Fair Work Division of the Federal Circuit Court in May 2011 5, and in those proceedings filed an affidavit in February 2012.6
[17] An excerpt of that affidavit by Mr Rahman, reads at paragraph 39:
○ “In March 2011 I applied for an APS 6 application (pages 114-125). At the same time I applied with a “dummy application” (pages 126-137) using a different name. I also completed the dummy application on the basis that the dummy applicant was an external candidate with no ATO experience. The dummy applicant was short-listed but I was not.” 7
[18] The ‘dummy’ application was made in the name of Muhammad Ahsanul Haque. An investigation by the ATO identified a number of additional job applications had been made in the same name or a derivation of it.
[19] On 27 March 2013, Mr Rahman completed the ‘Ethical Behaviour Matters e-self-directed course, and on 30 May 2013 completed its associated e-assessment 8. The course involved APS employees’ obligations in respect of the APS values and ‘ethical behaviour matters’.
[20] Proceedings in the Federal Circuit Court commenced in September 2013 (Federal Court Proceeding SYG842 of 2011) 9 and a decision dismissing the application was handed down by Judge Driver in February 2014 ([2014] FCCA 6).10
[21] In March 2014, Mr Rahman filed an appeal against Judge Driver’s decision to the Federal Court which was heard on 5 November 2014 by Justice Buchanan. The appeal was dismissed on 11 December 2014 ([2014] FCA 1356). 11
[22] Subsequently, Mr Rahman filed an application for special leave to the High Court, and in February 2015, Mr Rahman was advised that the application was filed out of time and that he could make an application for an extension of time. 12 Mr Rahman filed a further application on 12 February 2015 for special leave to appeal with the High Court which was dismissed on 13 August 2015.13
[23] On 4 March 2015, Mr Rahman was issued with a letter from Robyn Clayton, Assistant Commissioner, SBIT, Authorised Person. The letter was titled “Notice of Suspected Breach of the APS Code of Conduct” 14(the Notice) advising Mr Rahman that it was conducting an investigation into his alleged breach of the Code of Conduct. The Notice is eight pages in total, the relevant sections are extracted below:
“Notice of Suspected Breach of the APS Code of Conduct
1. A report has been provided to me concerning suspected breaches of the APS Code of Conduct (the Code). A copy of that report is at Attachment A. Based on the information in that report, you are suspected of breaching the following sub-sections of the Code, under section 13 of the Public Service Act 1999 (PS Act) at the relevant time:
(1) An APS employee must behave honestly and with integrity in the course of APS employment.
(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
(11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
Details of the suspected breaches of the Code
Allegations relating to false ATO job applications
2. On 25 September 2013, you were cross examined about a statement you had made in an affidavit sworn by you on 13 February 2012 (Affidavit) for use in the Federal Circuit Court proceeding (case number provided).
3. In paragraph 38 of the Affidavit, you stated that:
“In March 2011 I applied for an APS 6 application (pages 114-125). At the same time I applied with a “dummy application” (pages 126-137) using a different name. I also completed a dummy application on the basis that the dummy applicant was an external candidate with no ATO experience. The dummy applicant was short- listed but I was not”
With the Affidavit you included an Annexure consisting of one application you lodged in your name (at pages 114 to 125 of the Annexure) and another lodged by you in the name of Muhammad “Ahsanul” Haque, for an APS 6 Compliance Officer position (at pages 126 to 137 of the Annexure). The above statement and pages 126 to 137 of the Annexure were tendered in the Proceeding on 25 September 2013 and became Exhibit R7.
…
5. During the Proceeding and on investigation of the matter by the ATO, it was found that between the period 1 July 2010 and 29 March 2013, a number of applications for ATO positions had been made in the name of Muhammad “Ahsanul” Haque and “Ahsanul” Haque (False applications). Specifically:
a) On or about 19 July 2010, an application for an APS 3 Customer Service Representative/Compliance Officer position (particular reference numbers provided) was submitted in the name of Mr Muhammad “Ahsanul” Haque (Attachment D)
b) On or about 9 March 2011, an application for an APS 6 Compliance Officer position (particular reference numbers provided) was submitted in the name of Mr Muhammad “Ahsanul” Haque (Attachment E). This is also in the application Exhibit R7
c) On or about 9 March 2011, an application for an APS 5 Compliance Officer position (particular reference numbers provided) was submitted in the name of Mr Muhammad “Ahsanul” Haque (Attachment F).
d) On or about 16 March 2011, an application for an APS 4 Compliance Officer position (particular reference numbers provided) was submitted in the name of Mr Muhammad “Ahsanul” Haque (Attachment G).
e) On or about 11 October 2011, an application for an APS 5 Compliance Officer position (particular reference numbers provided) was submitted in the name of Mr Muhammad “Ahsanul” Haque (Attachment H).
f) On or about 7 March 2013, an APS 4 Compliance Officer (Sydney Metro) position (particular reference numbers provided) was submitted in the name of Mr Ahsanul Haque (Attachment I); and
g) On or about 28 September 2011, a completed application for an APS 1 Internship Program (particular reference numbers provided) was applied for in the name of Mr Muhammad “Ahsanul” Haque but not submitted for assessment (Attachment H).
6. During the Proceeding, it was confirmed that Muhammad “Ahsanul” Haque and Ahsanul Haque are the same person (Mr Haque).
…
9. It is alleged that you completed and submitted the False Applications detailed in paragraph 5 (a) to (f), and completed but did not submit the False Application detailed in paragraph 5 (g) above, knowing that they contained false information.
10. By completing the False Applications, it is also alleged that you made declarations in the name of Muhammad “Ahsanul” Haque and Ahsanul Haque in the ‘Step 9 – Declaration section of the applications that the information you entered in the applications were true and correct at the time of submission, when the information was false (False Declarations).
11. It is alleged that you have completed and/or submitted the False Applications and made the False Declarations for the improper purpose of advancing your employment and your position in your Proceeding.
12. By completing and/or submitting the False Applications, and making the False Declarations detailed above, it is alleged that you have not behaved honestly and with integrity in the course of your employment.
Therefore, it is suspected that you have breached sub-section 13(1) of the PS Act.
13. By completing and/or submitting the False Applications, and making the False Declarations detailed above, it is also alleged that you have provided false or misleading information in the False Applications. These applications were a request for information made by the ATO for the official purpose of determining whether prospective candidates were suitable for positions in the ATO.
Therefore, it is suspected that you have breached sub-section 13(9) of the PS Act.
14. Further, by completing and/or submitting the False Applications, and making the False Declarations detailed above, it is alleged that you have not behaved in a way that upholds the APS Values and the integrity and good reputation of the APS. Specifically, you have completed and/or submitted the False Applications and made the False Declarations, you have not upheld the PAS Value in paragraph 10(1)(d) of the Act, that “the APS has the highest ethical standards”.
Allegations relating to a false statement in a sworn affidavit
17. If it is found that you did not complete the application in Exhibit R7, then it is alleged that you made a false and/or dishonest statement in your Affidavit in order to benefit or advantage yourself in the Proceeding and your employment.
…
Allegations relating to you assisting with false ATO job applications
20. If it is found that you did not complete the False Applications detailed above, then it is alleged that you assisted another person, being a Mr Muhammad “Ahsanul” Haque (also referred to as Mr Ahsanul Haque), to submit the False Applications.
21. It is alleged also, that in assisting Mr Haque to submit the False Applications, you knew or reasonably ought to have known the applications included false or misleading information, including information, previously provided by you to the ATO.
22. Further, in assisting Mr Haque to submit the False Applications, you failed to notify the ATO of the existence of the false applications.
…
Decision of Authorised Person
26. As an Authorised Person under the Procedures for determining whether an employee has breached the Australian Public Service (APS) Code of Conduct and Imposition of Sanction (the ATO Procedures), I have considered the report and decided that the suspected breaches of the Code should be investigated in accordance with the ATO Procedures.
Process to Investigate and Determine whether you have breached the Code
27. I will notify you in due course as to whom I will appoint as the Determining Officer to investigate the matter and determine whether or not you have breached the Code.
28. If you wish to make a statement in relation to the suspected breach, you have until close of business Wednesday 11 March 2015 to provide a written response…..
…
Imposition of Sanctions, if any
33. In the event that it is determined that you have breached the Code, the nominated Determining Officer will refer the matter to a Sanction Delegate, who holds the delegation to impose sanction and who will decide on what, if any sanction/s should be imposed.
34. The Sanction Delegate will provide you with an opportunity to make a statement specifically in relation to the sanction/s should be imposed.
35. The Sanction Delegate will not make their decisions in relation to sanction until after the end of the period for you to make a statement (written or oral), and any statement that you make has been considered.
36. If the Sanction delegate decides that a sanction is appropriate, the following sanctions may be imposed pursuant to sub-section 15(1) of the PS Act are:
a) Termination of employment
b) Reduction in classification
c) Re-assignment of duties
d) Reduction in salary
e) Deductions from salary, by way of fine
f) A reprimand.
… ”
[24] A further letter from the ATO was issued to Mr Rahman on 4 March 2015, 15 stating that Mr Martin Leonard, Delegate of the Commissioner; had received the Report of the suspected breach of the APS Code of Conduct and that he would have to consider suspension of Mr Rahman’s employment. The letter provided Mr Rahman with an opportunity to make comment with respect to whether the ATO should suspend his employment with or without pay.
[25] On 13 March 2015, Ms Barbara Deegan, from Ashurst Australia was authorised by the ATO as the “Determining Officer” to undertake an external independent investigation into Mr Rahman’s alleged breach of the Code of Conduct. Investigations commenced on or around 16 March 2015. 16
[26] Mr Rahman was notified by the ATO on 17 March 2015 that he was suspended from his duties with pay, pending an investigation of his alleged breach of the Code of Conduct, in accordance with Regulation 3.10 of the Public Service Regulations 1999. 17
[27] Mr Rahman provided a written response to the Notice on 18 March 2015. 18
[28] On 24 March 2015, Ms Deegan wrote to Mr Rahman confirming that she was undertaking the investigation into his alleged breach of the Code of Conduct. 19 In that letter, Ms Deegan requested Mr Rahman attend an interview for the purposes of the investigation.
[29] The interview was conducted on 8 April 2015. In attendance was:
● Ms Deegan and a colleague from Ashurst Australia,
● Mr Jeff Lapidos from the Australian Services Union (ASU) (Mr Rahman’s union representative) and
● Mr Rahman. 20
[30] A copy of the transcript of the interview was provided to Mr Lapidos and Mr Rahman on 13 April 2015. 21
[31] A review of the ATO’s decision (at the request of Mr Rahman on 30 March 2015) to suspend Mr Rahman with pay was upheld on 18 May 2015 22.
[32] A draft copy of Ms Deegan’s Determination (Draft Report) was provided to Mr Lapidos and Mr Rahman on 19 May 2015. 23
[33] Mr Lapidos, Mr Rahman’s union representative, provided a response to the Draft Report on 2 June 2015, 24 outlining a number of issues.
[34] On 7 July 2015, Ms Deegan determined that Mr Rahman had breached the Code of Conduct. The final Determination Report titled “Confidential Investigation Report to the Australian Taxation Office” 25 (the Determination Report) was mailed to Mr Rahman on 9 July 2015.26
[35] On 17 July 2015, the ATO’s suspension of Mr Rahman from employment with pay was changed to suspension without pay. 27 This decision was revoked on 3 September 2015, and Mr Rahman’s suspension during the period 14 August until 2 September 2015 was altered to leave with pay.28 This was following a recommendation from the Federal Court to consider Mr Rahman’s suspension from duty without pay, to account for his financial circumstances.
[36] Ms Frances Cawthra, in her capacity as appointed sanction delegate wrote to Mr Rahman on 27 July 2015, (Proposed Sanction Letter) advising Mr Rahman that in light of the Determination Report, the ATO was in the process of considering what sanction (if any) would be imposed on him. A response was also requested from Mr Rahman. 29
[37] Mr Rahman responded to Ms Cawthra on 10 August 2015. 30 In Mr Rahman’s letter he stated that the Determination Report was flawed, lacked natural justice and had failed to comply with the ATO procedures. Mr Rahman further stated that Ms Deegan had made a “draft determination” before she had allowed him the opportunity to respond to the allegations before him. In his response, Mr Rahman filed 16 supporting documents to establish that he had not breached the Code of Conduct, one of which included an independent investigation by M.I.C Lawyers31 who were engaged by Mr Rahman. The report from M.I.C Lawyers concluded that Mr Rahman did not breach the Code of Conduct.
[38] Mr Rahman filed two applications in the Federal Court challenging the validity of his suspension from employment 32 (30 July 2015 and 21 August 201533). The first application was discontinued and the second application was dismissed by Justice Flick on 9 September 2015.34
[39] Mr Rahman was terminated from his employment on 2 September 2015, via a formal written letter from Ms Frances Cawthra 35. Attached to the letter of termination was a “Notice of Termination”36 which stated that the termination would take effect from the close of business that day.
[40] The termination letter set out Mr Rahman’s alleged breaches of the Code of Conduct and the steps leading up to the decision to terminate.
[41] The Notice of Termination signed by Ms Cawthra in part reads:
“In accordance with the provisions of sub-section 29(1) of the Public Service Act 1999, your employment is terminated on the ground that you have breached the APS Code of Conduct, being a ground specified in paragraph 29(3)(g) of the same Act.”
Submissions and evidence of Mr Rahman
[42] Mr Rahman gave evidence before the Commission to support his case and also called Mr Muhammad Ahsanul Haque as a witness.
[43] Mr Rahman denies that he completed and submitted false job applications. Mr Rahman states that Mr Muhammad Ahsanul Haque completed and submitted the job applications of his own volition, using Mr Rahman’s own responses to address the selection criteria. Mr Rahman’s evidence was that Mr Haque obtained Mr Rahman’s selection criteria as he sent them to Mr Haque for proof reading. Mr Rahman’s explanation was as follows:
“PN436 When I PPR my selection criteria, this is very common practice in public service to share with friend, especially any successful one. When I PPR the selection I send many friend - probably four or five friend - sometimes this friend, two friend, five friend - and I said, "Can you please do some proofreading and if you have any new idea let me know so that we can have great selection criteria?" That is the practice I did with Mr Haque and some other friends. Mr Haque was new migrant at the time. He also told me, "Can you give me your resume, CV, so I can get some idea to make my one?" I gave him with good faith because it is nothing wrong to give. I also give some selection criteria, he asking me, "Can I make it? I also looking for job. I am applying. Maybe I need to get some experience how to apply." I get that one but I also told him, "Don't use my one, please." He told me, "I would never use your selection criteria or your resume." What about he did if I asked him and what about he did wrong thing? I shouldn't be penalised for that person's wrongdoing.”
[44] Mr Rahman concedes that he was aware of the job applications which are the subject of his dismissal. 37 Because Mr Rahman did not complete or submit any false job applications, he argues that he did not breach the Code of Conduct.
[45] Mr Rahman stated that his dismissal arose as a result of proceedings he had instigated in the Federal Circuit Court which related to him being ‘passed over’ for interviews for promotions in circumstances where he thought he should have been interviewed. 38
[46] During the course of the Federal Circuit Court proceedings, Mr Rahman filed an affidavit on 22 February 2012 39 (undated)40 which states that he had completed a ‘dummy application’ under a different name.
[47] The relevant excerpt of the affidavit is as follows:
“In March 2011 I applied for an APS 6 application (pages 114-125). At the same time I applied with a “dummy application” (pages 126-137) using a different name. I also completed the dummy application on the basis that the dummy applicant was an external candidate with no ATO experience. The dummy applicant was short-listed but I was not.” 41
(My underline)
[48] Mr Rahman states the affidavit was true at the time he made the statement, and the reference to him having made a ‘dummy application’ was an unintentional error. 42 The affidavit was prepared by Mr Blank, his former Counsel in the Federal Circuit Court proceedings and the reference to him having filed a dummy application was a result of miscommunication with his legal representative Mr Blank.43 The miscommunication referred to by Mr Rahman is best explained via the transcript of interview44 between him and Ms Deegan (as part of the external investigation):
“Mr Rahman: ………I applied for APS6 job and one of my friend, applied for that one and we very much, I gave it to him for proofreading and I mentioned his name do you think I will do that one or not . I asked permission. He said yes, you can do that one in that case because this is the first time I was not short listed …
Ms Deegan: Sorry, whose opinion did you ….
Mr Rahman: Mr Blank
Ms Deegan: So what exactly did you ask Mr Blank?
Mr Rahman: I said Mr Blank at once I apply for a APS6 job. One of my friends applied, exactly same language, a dummy by his own.
…
Mr Rahman: Once again I can’t recall the date. One of my friends also applied, like dummy application with the same language what I have in my application because they are my CV as it were, similar like that and that is why it’s called this dummy application was made. What do you think; do you think I would include that one in my affidavit or not as it shows the difference of my ability or not? If I can clear the…I am a lay person, I need his permission or his advice to put forward. He said do it, in that case I do it. Go ahead.”
(As extracted)
[49] Mr Rahman explained that the application was a ‘real application’ by Mr Haque 45, but was a ‘dummy application’ in the sense that Mr Haque had used Mr Rahman’s selection criteria response and resume in his application.46 The intention of his affidavit with reference to the ‘dummy application’ was to note that he was aware of a circumstance where another person (Mr Haque) with lesser qualifications than himself was shortlisted for the position, and that he was not.47 Mr Rahman further stated that he had attached the ‘dummy application’ to the affidavit to ‘show who made this dummy application.’48
[50] When Mr Rahman realised the erroneous statement in the affidavit, he sought to rectify it via an amended statement of claim 49 some 12 months later on 13 March 2013.50 The relevant paragraph at 28F(c) of the amended statement of claim reads:
“In March 2011, I applied for an APS 6 application. At the same time there was a “dummy application” using a different name. The dummy application on the basis that the dummy applicant was an external candidate with no ATO experience (sic). The dummy applicant was shortlisted but I was not. (refer Feb 12 Affidavit, paragraph 38. In fact, there was a dummy application and I also completed – instead of “I applied with a dummy application”)”
(As extracted)
[51] Mr Rahman stated that the relevant paragraph 28F(c) of the amended statement of claim is wrong, and at PN231 Mr Rahman stated (in reference to the amended statement claim) the following:
“It should read (in reference to paragraph 28F(c)) - according to this, it's a dummy application, not short listed in here, is that in fact there was a dummy application, but I said I made a dummy application, it should be, "There was a dummy application" and the dummy application I already attached with the affidavit to show who made this dummy application.”
[52] Mr Rahman had previously given copies of his job applications to Mr Haque to assist him in addressing the criteria for job applications. 51 Mr Rahman states he did not complete any applications on behalf of Mr Haque, but was aware of Mr Haque’s applications, and had provided him with his personal selection criteria and resume to assist Mr Haque in job applications in general. Mr Rahman stated that the sharing or circulation of his personal resume and selection criteria is ‘common practice in public service’ and that in fact, he had also forwarded the same information to four or so other friends. 52
[53] Mr Rahman states he was not aware that Mr Haque had used his details in his ATO job application, 53 but knew that he applied for a position at the ATO.54 Mr Rahman only became aware that Mr Haque had used his selection criteria and resume when Mr Haque advised him that he had been shortlisted for a role sometime in March 2011.55 When Mr Haque advised him he had used his selection criteria for the ATO job application and that he was shortlisted for an interview, Mr Rahman instructed him to withdraw his application.
[54] Mr Rahman stated that he should not be penalised for another person’s wrongdoing. 56
[55] Mr Rahman did not advise the ATO that Mr Haque had applied for an ATO position using false information (his own information), giving the following reasons:
“Because I notice at that time a group of management is acting against me, as there is (indistinct) in system. That person is he is my direct management and I have not good relationship with them. Why should I need to tell them all this thing? (sic) …...” 57
[56] Although Mr Rahman did not advise anyone at the ATO regarding Mr Haque’s job applications using his own information, he did advise his legal representative at the time, Mr Blank. Mr Rahman stated that he did not advise the ATO because he was “following their advice” 58
[57] Counsel for the respondent directed Mr Rahman to an email from the ATO to Mr Haque dated 30 March 2011. 59 That email refers to Mr Haque being selected to go through to the next stage of the recruitment process and invites Mr Haque for an interview. At the top of that email, are handwritten words which read “dummy application shortlisted”. Mr Rahman admitted in his evidence that he wrote the words “dummy application shortlisted” on the application. However, Mr Rahman did not mean that the application was not real60 and sought to rely on the fact that English is not his first language. At PN256 Mr Rahman states:
“This is a real application, real applicant, not like what this man told - this person is not existing in the first place, this is not the case. Case is done, the application I mean is because he used exactly, word by word, copy and paste from my resume and from my selection criteria, that is called dummy, because I like to express the dummy means that one, I don't know, English is not my first language, but what is your interpretation that is could be different, I don't know. And I explained that one to my barrister. He told me this.”
Evidence of Muhammad Ahsanul Haque
[58] Mr Haque appeared as a witness for the applicant’s case and filed a witness statement in these proceedings. 61
[59] Mr Haque is an independent contractor with a degree in accounting, but does not currently work as an accountant. 62 Mr Haque is a friend of Mr Rahman.63 Mr Haque had previously applied for positions within the ATO on approximately six occasions during his university studies,64 but stated that he did not ‘really want to work for the ATO.”65
[60] Mr Haque stated that Mr Rahman had given him his resume and selection criteria to assist with his own job applications. 66 Mr Rahman had always encouraged Mr Haque to apply for jobs,67 but had not encouraged him to use his selection criteria, but rather to refer to it as a guide.
[61] Mr Haque admitted that he used Mr Rahman’s resume and selection criteria for his job applications with the ATO. 68
[62] When Mr Haque became shortlisted for an APS6 Compliance Officer with the ATO 69 (where he was invited to an interview) he immediately notified Mr Rahman that he had used Mr Rahman’s selection criteria in his job application.70
[63] In response to why Mr Haque had omitted to provide an address for the APS6 Compliance Officer application, he stated that he was pressed for time and simply forgot to do so. 71 In that application, Mr Haque also falsely stated that he was a ‘financial accountant’ at Suncorp, when he did not hold that position.72 Mr Haque further conceded that he had made other false statements in the application relating to his duties as a financial accountant at Suncorp.73
[64] Mr Haque admitted that he also submitted false information for another APS6 Compliance Officer ATO job application, by stating that he was a financial accountant at Suncorp. 74
[65] Mr Haque was questioned with respect to his ATO job applications where either his address was not provided, or had contained different addresses. 75 In response, Mr Haque stated that he was either pushed for time and therefore did not provide an address, or had forgotten to do so.76
[66] With respect to the discrepancies in the address field of the applications, Mr Haque stated that he lived with Mr Rahman in Roselands for approximately 3 years, but in some instances would stay at his uncle’s place in Punchbowl. 77
[67] Mr Haque stated that despite living with Mr Rahman during the period where Mr Rahman had commenced proceedings in the Federal Circuit Court, he had no knowledge that Mr Rahman had commenced General Protection proceedings against the ATO with respect to being ‘passed over’ for interviews. 78
[68] Mr Haque did not attend the interview which he was short-listed for because Mr Rahman had instructed not him not to do so. 79
Submissions and evidence of the respondent
[69] The ATO led evidence before the Commission that it had considered, based on the evidence before it, and on the balance of probabilities, that Mr Rahman completed and submitted or was instrumental in the submissions of five ‘false’ ATO job applications, 80 which is a breach of the APS Code of Conduct. Evidence was adduced from:
● Ms Frances Cawthra, Contestable Works Manager; Chief Financial Officer ATO.
● Ms Barbara Deegan, a consultant engaged by Ashurst Australia to undertake the independent investigation into Mr Rahman’s alleged breach of the Code of Conduct, otherwise known as the ‘Determining Officer’.
Evidence of Frances Cawthra
[70] Ms Cawthra has been employed by the ATO as Chief Finance Officer for approximately three and a half years, and has worked with the ATO for approximately ten years. Under the Public Service Act 1999 (Cth) (the Public Service Act); Chief Finance Officers hold delegation powers to sanction APS employees within the ‘agency’ 81 who have been found to have breached the Code of Conduct. Ms Cawthra was appointed as the ‘sanction delegate’ to consider and decide the sanction (if any) to be imposed arising from Mr Rahman’s alleged breach of the Code of Conduct.
[71] The role of the sanction delegate is to undertake a review of all the documentation provided, including the Determining Officer's Report, provide and ask for any other documentation that is required to be able to consider the matter fully taking into account the ATO's processes and procedures around what a sanction delegate is to do and to consider, and then to determine an appropriate sanction, if any. 82
[72] Ms Cawthra has acted in the capacity of sanction delegate in a variety of sanction cases. 83
[73] On 17 July 2015, Ms Cawthra was requested to consider and decide the sanction (if any) to be imposed on Mr Rahman following a determination that he breached the APS Code of Conduct 84 in the final Determination Report.”85 Ms Cawthra advised Mr Rahman of a potential sanction following the determined breach of the Code of Conduct in a formal letter dated 27 July 2015.86 The letter in part reads:
“Determined breach of APS Code of Conduct
1. As you are aware, Ms Barbara Deegan determined on 7 July 2015 by way of a formal report (the Determination Report) that you have breached the following sub sections of the Australian Public Service (APS) Code of Conduct:
13(1) An APS employee must behave honestly and with integrity in the course of APS employment.
13(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
13(11) An APS employee must at all times behave in a way that upholds the APS values and integrity and good reputation of the APS.
2. The matter has been referred to me as delegate for considering what sanctions should be imposed (if any) under section 15 of the Public Service Act as a result of you breaching the APS Code of Conduct. I have been provided with all copies of all documentation that was provided to Ms Deegan for the purposes of determining whether you had breached the Code of Conduct …
5. I am therefore of the view that:
Relevance of the breaches to the employee’s duties and reputation of the ATO
6. I consider there is a direct and self-evident connection between the breaches and your role with the ATO.
7. You are employed as an APS 4, in Small Business and Individual Taxpayers (SBIT) business line. You have been employed by the ATO on an on-going basis since 28 February 2008. I am of the view that as an employee with such long period of service, it is and would be expected that you would fully understand and be aware of your obligations, particularly with respect to the APS Values and the APS Code of Conduct.
8. I am satisfied that the ATO provided you with training to provide you with clear guidance on your obligations in respect of the APS Values and APS Code of Conduct for example “Ethical Behaviour Matters” in 2012/2013.
9. The breaches occurred in the course of and in connection with your employment.
10. I also consider that there is a significant connection between the breaches and the proper functioning and reputation of the ATO …
Previous Breaches of the Code of Conduct
11. In 2009 you breached sub section 13(3) of the APS Code of Conduct:
13(3) An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
The particulars on that occasion were that you were determined to have inappropriately accused an ATO employee of being derelict in her duties, negligent and not providing full services to him because he was from a minority group.
On this occasion you received the following sanctions:
12. In 2013 you were found to have breached the Code of Conduct on two separate occasions. Specifically sub sections 13(1), 13(5) and 13(11) of the APS Code of Conduct:
13(1) An APS employee must behave honestly and with integrity in the course of APS employment.
13(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
13(11) An APS employee must at all times behave in a way that upholds the APS values and the integrity and good reputation of the APS.
The matter related to you:
On this occasion you received the following sanctions:
13. I note that in the current misconduct matter you again breached sub sections 13(1) and 13(11) which are also relevant to the breaches in 2013. This leads me to believe that not only has your behaviour been inappropriate, it has been repeated. Based on this I have no evidence that you have modified your behaviour to align with the APS Code of Conduct and APS values.
Effect of the proposed action on the employee
14. It is accepted that the proposed sanction will affect you personally and financially. The proposed action is however, considered commensurate with the seriousness and significance of the breaches.
15. The purpose of this advice is to allow you an opportunity to put forward any information you wish me to consider before I make my decision.”
(My underline)
[74] In reference to questions arising from cross examination regarding the weight Ms Cawthra had placed on the Determination Report in the decision to terminate Mr Rahman’s employment, Ms Cawthra stated that she was presented with, and reviewed a large amount of other material in reaching the decision. This included:
[75] In outlining the reasons for her decision to terminate Mr Rahman’s employment, Ms Cawthra stated that she found the evidence provided by Mr Rahman “quite difficult” and was “at odds with the evidence.” 89 Ms Cawthra agreed with the processes and outcomes contained in the Determination Report and considered the Determination Report in conjunction with the MIC Lawyers’ investigation report as well as the response to the proposed sanction filed by Mr Rahman.90 Mr Rahman’s employment history, given that he had previously breached the Code of Conduct was also relevant in her decision.91
[76] In response to determining the severity of Mr Rahman’s misconduct which constituted the breach, upon review of the evidence, Ms Cawthra concluded that Mr Rahman had either:
1. Did as he said in his affidavit (in reference to the ‘dummy application’), that is; prepare false applications and made false declarations, which is in direct contradiction to the Code of Conduct; or
2. Had instrumentally worked with Mr Haque to have those submissions (sic) (job applications) and he would have known that those submissions had false information, which would also be in breach of the Code of Conduct. 92
[77] In determining the appropriate sanction for Mr Rahman’s breach, Ms Cawthra took into consideration:
1. The seriousness of the breach and determined that it met the criteria for termination of employment to be considered,
2. The relevance of the breach and determined that it was directly relevant to the employment of Mr Rahman; and
3. The disparity between the findings of the Determination Report and Mr Rahman’s assertion that Mr Haque completed and submitted the ‘dummy applications’. 93
[78] Ms Cawthra stated that the misconduct by Mr Rahman was of a level of severity, which represented a fundamental breach of trust with the ATO as his employer. 94
[79] Ms Cawthra stated that Mr Rahman, like all ATO employees had received induction and on-going training regarding conflicts of interest or perceived conflicts of interest. Further, ATO employees also go through an online training program regarding the APS values and the APS Code of Conduct. 95
[80] In response to Mr Roger’s cross examination with respect to English not being Mr Rahman’s first language, Ms Cawthra responded by stating that Mr Rahman “seemed to have a very good grasp of English” based on the evidence provided in his applications to the ATO. 96 Ms Cawthra also referred to Mr Rahman’s Master’s Degree being obtained in Australia.
[81] Following the proposed sanction letter to Mr Rahman on 27 July 2015, Ms Cawthra adjourned the sanction process on or around 12 August 2015, as a result of the issues arising from the second Federal Circuit Court proceedings. 97 The sanction process recommenced on or around 25 August 2015 when Ms Cawthra requested Mr Sheil (General Counsel, ATO) to forward Mr Rahman’s response to the Determination Report (which contained the MIC Lawyers’ investigation report)98 to Ms Deegan (the Determining Officer) for consideration.
[82] On 2 September 2015, Ms Cawthra was advised that Ms Deegan had considered the response filed by Mr Rahman, and that there was nothing contained in the response that would persuade her to vary any finding made in the Determination Report. 99
[83] Ms Cawthra issued a letter of termination to Mr Rahman on 2 September 2015. 100
Evidence of Barbara Deegan
[84] Ms Deegan, a consultant engaged by Ashurst Australia is the authorised independent investigator (referred to as ‘Determining Officer’) in relation to the allegations of Mr Rahman’s breaches of the Code of Conduct. Ms Deegan authored the “Confidential Investigation Report to the Australian Taxation Office” dated 7 July 2015 101 (the Determination Report), which determined that Mr Rahman had breached sections 13(1), 13(9) and 13(11) of the APS Code of Conduct. Ms Deegan was authorised as Determining Officer in 13 March 2015.102
[85] As part of the investigation, Ms Deegan reviewed a large number of documents provided by the ATO. 103
[86] Ms Deegan advised Mr Rahman in an email dated 24 March 2015 104 that she had been engaged to investigate his alleged breach of the Code of Conduct. That email requested Mr Rahman provide statements from Mr Blank (Mr Rahman’s former legal representative) and Mr Haque. Ms Deegan also requested Mr Rahman attend an interview regarding the allegations against him.
[87] Mr Rahman provided Ms Deegan with additional material on 24 March 2015. This comprised of Mr Haque’s statement and a tax invoice from Mr Blank. 105
[88] Ms Deegan interviewed Mr Rahman on 8 April 2015. Mr Lapidos, Mr Rahman’s ASU representative, was also in attendance.
[89] On 16 April 2015, Ms Deegan asked Mr Rahman whether he required Mr Haque to be interviewed. 106 Mr Rahman responded to Ms Deegan stating that “Mr Haque wanted questions through email so there is no more misunderstanding”.107
[90] Ms Deegan contacted Mr Haque directly on 20 April 2015, requesting him to participate in an interview. 108 Mr Haque declined to participate in an interview on 21 April 2015109 but provided a further statement.110
[91] Ms Deegan outlined numerous correspondences which were exchanged between her, Ms Robyn Clayton (ATO Assistant Commissioner, Small Business/Individual Taxpayers) Mr Rahman and Mr Lapidos. 111 The correspondence included Mr Rahman and Mr Lapidos expressing dissatisfaction with the transcript of the 8 April 2015 interview and that Ms Deegan’s contact to Mr Haque was a “breach of his privacy”.112 Mr Rahman referred to Ms Deegan’s investigation as a ‘witch hunt’.113
[92] Ms Deegan sent Mr Rahman and Mr Lapidos a draft copy of the Report (the Draft Report) on 19 May 2015, which requested any comment to be made by 26 May 2015. 114 A copy of the updated transcript of the 8 April 2015 interview with the proposed amendments by Mr Rahman and Mr Lapidos was also provided. The Draft Report concluded that Mr Rahman had breached the Code of Conduct.
[93] Mr Lapidos requested an extension for the filing of a response on 26 May 2015, 115 which was granted by Ms Deegan.116
[94] Mr Lapidos wrote to Ms Deegan identifying a number of concerns with the Draft Report on 2 June 2015. 117 The letter stated that Mr Rahman had been denied procedural fairness by the manner in which the Determination was conducted. The relevant concerns raised included:
1. Failure to provide Mr Rahman with the material to be relied upon;
The ‘final version’ of the 8 April transcript was not provided till the draft determination
2. Failure to provide Mr Rahman with a reasonable opportunity to make a statement;
Mr Rahman was not provided with an opportunity to make a statement after the 8 April 2015 interview
3. Failure to give due regard to procedural fairness (the hearing rule);
Mr Rahman was denied the opportunity to make a statement on questions of fact
4. Duty to take into account relevant considerations and exclude irrelevant considerations;
Reference to the inaccuracies of the transcript
5. The standard of proof; and
Failure to address the balance of probabilities standard of proof regarding findings of fact in the draft determination
6. Bias.
Apprehended bias
[95] Ms Deegan responded to Mr Rahman and Mr Lapidos on 4 June 2015 118 addressing the concerns raised by Mr Lapidos. The relevant sections of the letter addressing the issues identified above are extracted below:
“ …
Opportunity to provide statement
Mr Rahman was provided with the Notice of Investigation in early March 2015. From the date of receipt of this correspondence he was aware that he was entitled to make a statement regarding the allegations.
Mr Rahman made a response to the allegations on 18 March. At the commencement of the interview on 8 April 2015, as you had indicated that you had not seen Mr Rahman’s response I asked whether you would like some time to put in a further written response and you responded that you preferred to go ahead with the interview.
…
You then proceeded to make a comprehensive oral response on behalf of Mr Rahman … A fifteen minute break was taken to allow you to discuss with Mr Rahman whether he wished to make a further statement. I acknowledge that you noted that you would inform me if you wished to make a further statement after the transcript had been made available.
Transcript of interview
You and Mr Rahman were provided with the transcript of interview on 13 April 2015 and were asked to provide any comments or corrections. The period of time in which to do so was extended at your request. Despite receiving additional time, you provided only corrections to the first 5 pages of the transcript. The majority of the concerns you made did not go to the material facts at issue (for example changing the word “yeah” to “yes”)
All your proposed corrections were incorporated in the transcript provided to you on 19 May 2015 and you were asked to advise me if you considered the draft determination did not accurately reflect what Mr Rahman said during the interview. Despite receiving an extension to provide your response to the draft determination you have not advised me of any section of the determination that you consider does not accurately reflect what Mr Rahman said during the interview.
If you wish to advise me of any such sections, I request that you do so by 5pm Tuesday 9 June.
Draft Determination
You and Mr Rahman were provided with the draft determination on 19 May 2015.
Despite having had ample opportunity to do so, Mr Rahman has not made any further statement regarding the allegations
If Mr Rahman wishes to make a further statement regarding the allegations, he is free to do so. I ask that any such statement be provided by 5pm Tuesday 9 June 2015.
Standard of Proof
I am prepared to amend the draft determination to deal with the question of standard of proof. This is the purpose of the provision of the determination as a draft. You are provided with an opportunity to bring to my attention any errors of fact or any other omission I may have made that you consider relevant.
Bias
It is incorrect for you to suggest that any submission you might now make will not be received with an open mind given the findings in my draft determination. Clearly, if any submissions is made that has the effect of calling into question, or otherwise altering, any premise upon which my draft findings have been made, I will alter my findings accordingly.
…”
[96] On 9 June 2015, Mr Lapidos responded to Ms Deegan’s letter 119 dated 4 June 2015, (extracted above in part). Ms Deegan also received an email from Mr Rahman on 9 June 2015, attaching an application and affidavit that he had filed at the Federal Court of Australia. Ms Deegan was named as the sixth respondent to the application.120
[97] On 10 June 2015, Mr Lapidos requested a three week extension to file further submissions to the Draft Report. 121 Ms Deegan granted a one week extension on 11 June 2015122 and provided an updated Draft Report which incorporated the issues raised by Mr Lapidos regarding standard of proof.123
[98] Mr Lapidos requested a further extension to file a response to the Draft Report on 18 June 2015. 124 This was granted by Ms Deegan on 19 June 2015.125
[99] Mr Lapidos wrote to Ms Deegan on 3 July 2015 126 advising that he was still of the view that there was a reasonable apprehension of bias. Mr Lapidos suggested that Ms Deegan step aside as the Determining Officer due to apprehended bias.
[100] Mr Lapidos also advised that Mr Rahman had filed an application under s.739 of the Fair Work Act 2009 with the Commission with respect to Ms Deegan having conducted the investigation in a bias manner. 127 The relief sought under the s.739 application was that Ms Deegan be removed as the Determining Officer.128
[101] Ms Deegan responded to Mr Lapidos on 7 July 2015 stating that she had considered his request but that she would not delay the final determination of whether Mr Rahman had breached the Code of Conduct. 129
[102] Ms Deegan determined that Mr Rahman had breached the Code of Conduct on 7 July 2015 and a copy of the Determination Report was sent to Mr Rahman on 9 July 2015. 130
[103] In response to why Ms Deegan did not accept Mr Rahman’s explanation that he did not draft the affidavit, but Mr Blank did and that Mr Rahman had failed to read it properly, 131 she stated that she did not know why Mr Rahman did not read his own affidavit.132 Ms Deegan also referred to 4.1(b) of the Determination Report133 where Ms Deegan states:
“I was not satisfied with Mr Rahman’s explanation as to why Mr Blank had drafted the affidavit to state that Mr Rahman had submitted the dummy application. When questioned about why Mr Blank would have drafted the affidavit to say that Mr Rahman submitted the dummy application, Mr Rahman obfuscated. He stated that he sought Mr Blank’s advice as to whether or not to include the fact of the dummy application in the 22 February 2012 affidavit. However, he did not give a plausible response to the question of how Mr Blank came to draft the affidavit in a way that stated that Mr Rahman had made the dummy application …”
[104] Ms Deegan referred to the transcript of the 8 April 2015, interview, 134 the relevant excerpt of the interview appears at page 17 of the transcript:
“Ms Deegan: … Alright so, what you’ve told me about what you remember of saying to Mr Blank is how you remember telling him that and you say when you got that affidavit you didn’t read it properly.
Mr Rahman: No, I didn’t
Ms Deegan: Okay so, when did you read it properly?
Mr Rahman: Probably, I can’t recall, probably six months, three months or later and after I changed my solicitor, delayed that one, and I have the next one is my further amended statement of claim. And before, if you read that one from my memos here, I corrected it”
[105] It was Ms Deegan’s evidence that she had complied with the required processes in reaching her determination, the Determination Report contains:
1. An introduction and background of the facts leading to the allegations before Mr Rahman;
2. A summary of findings of fact in light of the relevant evidence and on the balance of probabilities;
3. The investigation procedure (including the interview with Mr Rahman, Mr Haque’s evidence and an evaluation of evidence);
4. Relevant documents relied upon in the course of the investigation; and
5. A conclusion and summary of findings.
Relevant Legislation
[106] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows:
“S.385. A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[107] The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:
“S.396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[108] The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Rahman is not a person protected from unfair dismissal. The ATO is not an employer covered by the Small Business Code.
Consideration
[109] In this matter, there was a large volume of material in the form of statements and oral evidence to consider and written and oral submissions presented. I have had regard to all the material which is relevant to the requirements of s.387 in considering whether Mr Rahman’s termination of employment by the ATO was harsh, unjust or unreasonable.
[110] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
“Section 387 Criteria for considering harshness
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[111] I will now consider each of these factors in turn.
(a) Whether there was a valid reason related to capacity or conduct for the dismissal
[112] Mr Rahman was dismissed following the determination that in 2011, Mr Rahman had submitted a false ATO job application with the ATO in his own name and numerous “false applications” under the names ‘Muhammad “Ahsanul” Haque’ and ‘Ahsanul Haque’. This misconduct was amongst other things a breach of the APS Code of Conduct.
[113] Mr Rahman was found to have contravened s 13 of the Public Service Act 1999 (Cth) (the “Public Service Act”) by having breached the APS Code of Conduct 135. The relevant sections are extracted below:
“13(1) An APS employee must behave honestly and with integrity in the course of APS employment.
13(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
13(11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.”
[114] Section 15(1)(a) of the Code of Conduct 136 clearly states that termination of employment is a sanction that may be imposed for a breach of the Code of the Conduct.
[115] The breaches concerned Mr Rahman having either completed and submitted, or being instrumental in the submission of five ‘false’ ATO job applications 137 being:
i. APS 6 Compliance Officer position submitted in the name of Muhammad Ahsanul Haque on or around 9 March 2011, 138
ii. APS 5 Compliance Officer position submitted in the name of Muhammad Ahsanul Haque on or around 9 March 2011;
iii. APS 4 Compliance Officer position submitted in the name of Muhammad Ahsanul Haque on or around 16 March 2011;
iv. APS 5 Compliance Officer position submitted in the name of Muhammad Ahsanul Haque on or around 11 October 2011;
v. APS 4 Compliance Officer position submitted in the name of Muhammad Ahsanul Haque on or around 7 March 2013.
[116] Counsel for Mr Rahman submits that the ATO’s entire case stands or falls on whether Mr Rahman created the ‘dummy’ job application for the position of APS 6 Compliance Officer on 9 March 2011. 139 Mr Rahman states that he did not complete and submit any false job applications and did not make any declarations as to their accuracy as held by the ATO.140 Mr Rahman admitted that he was aware of their existence.141
[117] The applications referred to as ‘false applications’ by the ATO were said by Mr Rahman to have been completed by Mr Muhammad Ahsanul Haque. Mr Rahman had previously provided his resume and selection criteria to Mr Haque.
[118] The Determination Report was completed on 7 July 2015 by Ms Deegan, and a copy of the Determination Report was provided to Mr Rahman on 9 July 2015. Ms Deegan gave evidence in these proceedings.
[119] The Federal Industrial Relations Court 142 considered the concept of a valid reason for termination in Selvachandran v Peteron Plastics Pty Ltd143 (Selvachandran), a decision of Northrop J. Despite being a case under previous legislation, it is applied in this Commission. In Selvachandran, his Honour found that:
“In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[120] Comments made by Wilcox CJ in Kenefick v Australian Submarine Corporation Pty Ltd 144 are also relevant in considering the meaning and approach to ‘valid reason’:
“I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination and that the termination must be a logical response to the employee’s capacity or conduct or the employer’s operational requirements.”
(My underline)
[121] It is well established that an assessment of whether a dismissal is harsh, unjust or unreasonable does not involve the Commission putting themselves in “the shoes” of the employer and determining what he or she would have done in the circumstances, but is to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 145
[122] A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal. 146
[123] Accordingly, the task in establishing whether the ATO had a valid reason to terminate Mr Rahman’s employment lies in whether the Commission is satisfied that Mr Rahman created or was instrumental in the submission of false job applications to the ATO.
[124] The ATO relied on the Determination Report that Mr Rahman had breached the Code of Conduct as justification for the dismissal which were summarised in Mr Rahman’s letter and notice of termination.
[125] In the Determination Report, Ms Deegan concluded that on the balance of probabilities, Mr Rahman had both completed and submitted, or was instrumental in the submission of five ‘false’ ATO job applications.
[126] Nothing arising from Ms Deegan’s evidence before the Commission including her cross examination by counsel for Mr Rahman places her conclusions in a light, other than being reasonable and defensible on the evidence that was before her, acknowledging that Mr Haque declined to be interviewed but gave evidence in these proceedings.
[127] There is a clear causal connection between the reasons for the ATO’s decision to terminate Mr Rahman being a response to the allegation that Mr Rahman was instrumental in the alleged false job applications.
[128] As was in my view correctly asserted by counsel for Mr Rahman, if he did not create the ‘dummy’ job application or partake in any subsequent job applications, then it must follow that there is no valid reason for his dismissal.
[129] The applicant submits that if the respondent cannot prove Mr Rahman’s misconduct strictly on the balance of probabilities, then he must be entitled to a remedy. 147
Standard of proof
[130] The ATO disagreed with the applicant’s submission that the Commission must be satisfied on the balance of probabilities of Mr Rahman’s misconduct. 148 In this respect, the ATO argued that the Commission is not bound by the rules of evidence as per s.591 of the Act, and as such would be incorrect to refer to the issues of ‘standard of proof’.
[131] In relation to the balance of probabilities, the High Court in Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449, made the following observations:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw.
`The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …'
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.
When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proof issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusions. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities."
(My underline)
[132] This was the approach adopted in the Australian Industrial Relations Commission in Brinks Australia Pty Ltd v Transport Workers’ Union of Australia 149 where the Full Bench stated:
“[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.”
[133] Accordingly, in considering whether there was a valid reason for the dismissal of Mr Rahman, and while not being bound by the rules of evidence, it is necessary, having regard to the nature of the evidence for the Commission to reach a conclusion by reference to the balance of probabilities.
Evidence before the Commission
[134] Ms Deegan, author of the Determination Report was subject to cross examination. I did not observe there to be any factual differences in her evidence in contrast to her Determination Report. The evidence of Ms Cawthra, the sanction delegate who made the decision to terminate Mr Rahman’s employment was consistent in her evidence before the Commission.
[135] The sole witness for the applicant was Mr Haque who stated that he personally submitted the ATO job applications (which form the subject of Mr Rahman’s dismissal) using Mr Rahman’s selection criteria. The Determination Report outlined that as part of the investigation procedure, Mr Haque was invited to attend an interview but declined. 150 At page 651 of the Determination Report, Ms Deegan stated:
“If Mr Haque wished to support Mr Rahman’s claim that he had applied for the jobs in his own name then he could have attended an interview to have his credibility tested. As he declined to do so, I could not determine the credibility of that evidence. Accordingly, for the purpose of this investigation I have chosen to rely on the evidence given by Mr Haque during the hearing on 26 September 2013”
[136] Mr Haque appeared before the Commission, and gave evidence that he applied for the ATO positions of his own volition. My observations of Mr Haque’s evidence were that it was not given in a forthright or confident manner.
[137] Mr Rogers, Counsel for the applicant cross examined Ms Deegan on why she rejected Mr Rahman’s explanations, in particular Mr Rahman’s claim that he did not make the affidavit, and that Mr Blank had done so with some misunderstanding. Mr Rahman had merely failed to read the affidavit before signing it. 151 Mr Rogers also noted that Ms Deegan did not contact Mr Blank as part of the investigation.152
[138] It is inferred that Mr Rahman’s speech (English not being his first language) and his tendency to ‘babble’ 153 may be attributable to the misunderstanding between Mr Rahman and Mr Blank culminating in the erroneous references contained in the affidavit, stating that Mr Rahman had made the dummy application.
[139] Ms Deegan stated that she had no issues understanding Mr Rahman during her interview with him, and how Mr Blank ‘could have got it so wrong if Mr Rahman had explained it to him the way that he had tried to explain it to me.’ 154 Mr Rahman has been before the Commission on a number of occasions in these proceedings, and on two of those occasions represented himself.155 I personally did not observe Mr Rahman to have any difficulty with his grasp of the English language. I also have regard to his long employment history and educational background and find that this is not a plausible explanation for the misunderstanding.
[140] Mr Rahman conceded that when he was made aware that Mr Haque had used his selection criteria and provided false information in his job application, he neglected to advise his employer. 156
[141] In Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229 a Full Bench of the Industrial Commission of South Australia stated:
“ … Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”
(My underline)
[142] The findings made by Ms Deegan in the Determination Report demonstrate that the ATO properly analysed and evaluated the evidence regarding Mr Rahman’s alleged breach of the Code of Conduct. Ms Cawthra took into account the Determination Report in conjunction with Mr Rahman’s employment history. Ms Cawthra also demonstrated that she considered the responses provided by Mr Rahman in response to the proposed sanction by forwarding his response to Ms Deegan for further review. Ms Cawthra effected Mr Rahman’s termination upon receiving confirmation from Ms Deegan that his responses would not alter the Determination Report.
Mr Blank
[143] Mr Rahman takes issue with Ms Deegan not approaching Mr Blank as part of her investigation. However, I note that in an email dated 24 March 2015, 157 Ms Deegan requested that Mr Rahman provide statements from Mr Blank as a matter of urgency.
“In response to the allegations, provided to the ATO on 18 March 2015, you indicated that you have further information to provide including statements from your former barrister Mr Blank and from Mr Haque. Could you please advise, as a matter of urgency, when you will be in a position to provide this additional material?”
[144] There was no response from Mr Rahman regarding obtaining statements from Mr Blank. During the hearing, a copy of an email from Mr Blank to Mr Rahman dated 25 March 2015 158 was tendered by the applicant.
“Dear Fahmid,
While I was happy to see you the other day, regrettably I am not in a position to assist you at all with your matters.
I wish you all the best.
Regards
Allan Blank
Barrister … ”
[145] The email from Mr Blank appeared to be in response to an email sent by Mr Rahman on 18 March 2015 159:
“Dear Mr Blank
Please find attached factual background of dummy application and proposed complaint as ATO lied at court matter.
still I didn’t hear anything from my previous barrister Mr Rogers at University chamber but I’ll update you. (sic)
Thanks for your support
Best regards/Fahmid”
[146] I accept that it may have been beneficial for the ATO to have directly communicated with Mr Blank regarding the affidavit. However, Ms Deegan attempted to obtain this information in the form of a statement. Mr Rahman did not call Mr Blank to support his position before the Commission.
[147] Mr Rahman asserts that Mr Blank had misunderstood his instructions, which led to the erroneous statement in his affidavit that he had submitted a ‘dummy application’. An affidavit, in the context of court proceedings serves as evidence as to its veracity. In this context, it is therefore reasonable for a third party to rely on statements made in affidavit as fact, and for the ATO to conclude that Mr Rahman had submitted the ‘dummy application’.
[148] Accepting Mr Rahman’s argument that the affidavit was not as he intended and that it was Mr Haque who submitted the ‘dummy application’, it is difficult to comprehend why the the amended statement of claim 160 did not state that Mr Haque had drafted the application.
Mr Haque’s evidence
[149] Mr Haque’s evidence was that he used Mr Rahman’s selection criteria and resume in the applications. As stated above, Mr Haque was not an impressive witness, he was unfamiliar with the detail of the job applications which he stated he had applied for. This was despite having applied on six separate occasions for a position at the ATO. He admitted that he had acted dishonestly and provided false information in most aspects of his ATO job applications where he had used Mr Rahman’s selection criteria and resume.
[150] Mr Haque stated that he did not “really want to work for the ATO”. 161 This is in contrast to Mr Haque’s evidence at the Federal Court proceedings (which has been tendered as evidence in these proceedings) where he stated that he “just wanted to get a job in the ATO”.162
[151] Mr Haque was unable to provide a plausible explanation as to why he omitted to provide,or provided incomplete details of his residential address and dates in his job applications. His response was that on occasions he was in a hurry to file the job application. 163
[152] As Mr Haque did not make himself available to the investigation undertaken by Ms Deegan, she therefore relied on the evidence given by him in the Federal Circuit Court proceedings. Mr Haque’s evidence at those proceedings also appears to be inconsistent, and contradictory, for example:
● At line 20 on page 227 of the transcript 164 Mr Haque stated “I just tried my luck, I didn’t want to get the job”
● At line 5 on page 237 of the transcript 165 Mr Haque stated “I just wanted to get a job in the ATO”
● At line 5 on page 243 of the transcript 166 Mr Haque stated “ … I didn’t want to work for the ATO. I didn’t have any intention to work for the ATO. I just applied”
● At line 25 on page 250 of the transcript 167 Mr Haque stated “I’m always interested in working for the ATO, it’s a dream thing…”
[153] Mr Haque, under cross examination stated that he had shared a house with Mr Rahman for ‘two, three years’. 168 Having regard for Mr Haque’s evidence that he obtained Mr Rahman’s employment history details to complete the selection criteria and having shared a house at the relevant time, it is in my view inconceivable to accept that Mr Haque had no knowledge of Mr Rahman’s Federal Court proceedings.169
[154] Why he was applying for jobs with false information while still studying and how copying Mr Rahman’s selection criteria responses assisted him in learning how to complete job applications was not explained satisfactorily. 170
[155] Based on the inconsistencies in Mr Haque’s evidence in these proceedings, and upon analysis of the evidence given by Mr Haque in the Federal Circuit Court proceedings, I have difficulty in accepting the credibility of Mr Haque as a reliable witness.
Valid Reason
[156] I do not find that Mr Rahman’s explanation regarding the statement in his affidavit that he made a dummy application under a different name in any way convincing. There was no evidence to support the argument that his barrister had misconstrued his instructions. His explanation in respect of the amending affidavit under cross examination was as follows:
“PN 231What's wrong with it? What should it read?---It should read - according to this, it's a dummy application, not short listed in here, is that in fact there was a dummy application, but I said I made a dummy application, it should be, "There was a dummy application" and the dummy application I already attached with the affidavit to show who made this dummy application.
PN 232 So it was a dummy application, it wasn't a real application?---Yes. It's real by Mr Haque. Dummy I said - the reason is Mr Haque, what he did, he copied and paste from my selection criteria and my resume, that's why I said it is dummy. Real application, but "dummy" - I said the word "dummy" is because he copy and pasted all of my content and he use my selection criteria, he used my resume to make it up and that is the reason is the word called "dummy" in here.”
[157] To this extent, I conclude that Mr Rahman either submitted or was instrumental in Mr Haque’s APS 6 Compliance Officer Role job application.
[158] However, I am not satisfied that the five other ATO job applications made by Mr Haque, were necessarily made by Mr Rahman. The ATO point to the similarities between the APS 6 application and the five other ATO job applications made by Mr Haque. The ATO conclude that Mr Rahman was instrumental in Mr Haque’s five other ATO job applications by way of ‘linking’ the APS 6 role to the other applications.
[159] At 4.1(i) of the Determination Report, 171 it states:
“There are a number of similarities between the various applications submitted in Mr Haque’s name. Appendix 1 of the Report is a comparison of the key aspects of those applications.
The comparison demonstrates a significant degree of similarity between the 9 March 2011 APS 6 Application, and the 9 March APS5 Application, the 16 March 2011 APS4 Application and the 11 October 2011 Application, such that I am satisfied, on the balance of probabilities the applications were made by the same person.
Given that I am satisfied that Mr Rahman completed and submitted the application referred to in paragraph 38 of his 12 February 2012 affidavit I am also satisfied, given the substantial similarities between that application and a number of the other applications made in Mr Haque’s name, that Mr Rahman both completed and was responsible for the submissions of those applications and that these applications were also made for the improper purpose of advancing his employment and his position in anticipation of Federal Circuit Court proceedings against the ATO”
[160] I agree that there are similarities between the job applications, but do not form the view that such an inference is conclusive. Where conduct of the applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged occurred. 172
[161] On the evidence before the Commission, I accept that Mr Rahman did as he stated in his affidavit and submitted a false application under a different name, that being Mr Haque. I am not persuaded as Mr Rahman argued that Mr Blank, his barrister, misunderstood his instructions.
[162] However, having arrived at the above conclusion, I am not satisfied to the requisite degree that by way of inference and similarity that Mr Rahman can be held responsible for either filing or being instrumental in the filing of the five other ATO job applications under the name of Mr Haque or a derivative of that name. Although, I find the purpose of the other applications on Mr Haque’s evidence is unclear and confusing.
[163] I am satisfied that on the balance of the probabilities, the misconduct alleged by the ATO did occur in respect to at least the 9 March 2011 APS 6 Compliance Officer application in the name of Muhammad Ahsanul Haque. That is that Mr Rahman acted in breach of the Code of Conduct in either completing the false application or knowingly assisted Mr Haque to do so. Given that, I am satisfied that this constitutes a valid reason for Mr Rahman’s termination of employment.
Section 387(b) and (c) - whether the person was notified of that reason and whether they were given an opportunity to respond
[164] Mr Rahman was first notified on 4 March 2015, that the ATO was conducting an investigation into his alleged breach of the Code of Conduct. 173 At paragraph 36 of the 4 March 2015, letter of notification it states that termination of employment is a possible sanction for a substantiated breach.174
[165] On 17 March 2015, Mr Rahman was notified that he was suspended from his duties pending an outcome of the investigation. 175
[166] On 8 April 2015, Mr Rahman attended an interview with Ms Deegan for the purposes of the investigation into his alleged breach. A transcript of the interview was provided to Mr Rahman and Mr Lapidos (Mr Rahman’s union representative) for review.
[167] A Draft Determination Report setting out the findings of the investigation was provided to Mr Rahman for comment on 19 May 2015. 176 A number of extensions were granted to Mr Rahman to file a response.
[168] Mr Rahman was further advised on 27 July 2015, that in light of the Determination Report, Ms Cawthra was in the process of determining what sanction to impose (if any). A further opportunity to respond was offered to Mr Rahman.
[169] Mr Rahman’s responses were referred to Ms Deegan before a final termination letter was issued to Mr Rahman on 2 September 2015. The letter of termination set out the reasons for Mr Rahman’s termination.
[170] I am satisfied that the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances and provided Mr Rahman with a reasonable opportunity to respond (a number of extensions were granted for the filing of responses). While the decision to terminate Mr Rahman’s employment was not until a considerable period of time had elapsed since the offending conduct came to the attention of the ATO, the decision was considered and made only after an exhaustive investigation was undertaken. I do not find there was any condonation of Mr Rahman’s conduct.
Section 387(d) - any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[171] Mr Lapidos, Mr Rahman’s union representative was present during the investigation interview. The ATO had also corresponded with Mr Lapidos on a number of occasions during the process which ultimately lead to Mr Rahman’s dismissal.
Section 387(e) - if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[172] The dismissal related to a breach of the Code of Conduct rather than unsatisfactory performance.
Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) - the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[173] The ATO is an agency of the Commonwealth, which operates under the Public Governance, Performance and Accountability Act 2013, within the Treasury portfolio, and is accountable under the Public Service Act 1999. Under the Public Service Act 1999, certain delegates are appointed regarding procedures followed in effecting a dismissal.
[174] The ATO is a large public body with no shortage of human resources. It has management and supervisory employees dealing with employment issues on a day to day basis and a dedicated human resources management team. The process followed by the ATO leading to Mr Rahman’s dismissal was thorough and comprehensive reflecting the human resource competencies within the ATO.
Section 387(h) - any other matters that the FWC considers relevant
[175] Having found that a valid reason existed for the termination of Mr Rahman, I was not directed to any other matters not discussed above, that would lead me to conclude that the dismissal was harsh, unjust or unreasonable. The ability to take into consideration any mitigating circumstances is severely curtailed on the basis that Mr Rahman denies having engaged in the misconduct he has been found to have been involved in.
Conclusion
[176] Having found that there was a valid reason for the dismissal and having considered all the other criteria under s.387; I find that Mr Rahman’s termination was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A. Rogers of Counsel for Mr Rahman
Mr T. Glover of Counsel for the ATO
Hearing details:
Sydney
2015
23, 30 November
3 December
2016
28 January
8 March
1 Exhibit FC4 of Exhibit R1 at page 16
2 Letter from K&L Gates (representatives for the respondent) to the Commission dated 28 September 2015
3 Respondent’s Outline of Submissions16 November 2015 at 4.3
4 Exhibit A5
5 See paragraph 4 of question 3.2 of Mr Rahman’s application and PN96
6 PN113 to PN115
7 Annexure FC38 of Exhibit R1 at page 438, see also PN122 to PN125
8 PN94, Page 6 of Exhibit A1 and Page 209 of Exhibit R1
9 PN1030 to PN1031, see also page 215 of Exhibit R1
10 PN1048
11 PN1048 and paragraph 20 of Annexure 27 of Exhibit R1
12 PN1050
13 Rahman v ATO [2015] HCASL 126 Footnote 28 of ATO closing submissions
14 Annexure FC8 of Exhibit R1 at page 115
15 Annexure FC15 of Exhibit R1 at page 183
16 Exhibit R2 at paragraph 8
17 Annexure FC17 of Exhibit R1 at page 186
18 Annexure FC9 of Exhibit R1
19 Annexure BD19 of Exhibit R2 at page 321
20 See paragraph 16 of Barbara Deegan’s statement and Annexure BD3 of Exhibit R2 at page 20.
21 Annexure BD27 of Exhibit R2 at page 367
22 Annexure FC19 of Exhibit R1 at page196
23 Annexure BD57 of Exhibit R2 at page 517
24 Annexure BD62 of Exhibit R2 at page 592
25 Annexure BD73 of Exhibit R2 at page 642
26 See paragraph 66 of Ms Deegan’s statement
27 Annexure FC21 of Exhibit R1 at page199
28 Annexure FC24 of Exhibit R1 at page 203
29 Annexure FC29 to Exhibit R1 at page 221
30 Annexure FC30 to Exhibit R1at page 225
31 Annexure FC31 to Exhibit R1at page 235
32 See paragraph 34, page 4 of Exhibit R1,
33 Applicant provided the filed applications with the application
34 [2015] FCA 988
35 Annexure A of Exhibit A1
36 Ibid
37 See paragraphs 8 to 9 of Exhibit A1
38 Paragraph 7 of Mr Rahman’s submissions and paragraphs 12 to 13 of Exhibit A1
39 Paragraph 14 of Exhibit A1 and PN125 to PN128
40 See PN236 to PN238 and PN241
41 Annexure FC38 of Exhibit R1 at page 438, see also PN122 to PN125
42 PN168
43 Paragraph 6 of the application and PN185
44 Annexure BD27 of Exhibit R2 at page 382
45 PN189
46 PN232
47 Paragraphs 14 to 21 of Exhibit A1
48 PN231 to PN232
49 Annexure FC36 of Exhibit R1 at page 416
50 PN198
51 Paragraph 10 of Exhibit A1
52 Paragraphs 10 to 11, and 17 to 21 of Exhibit A1 and PN436
53 PN276
54 Paragraph 10 of Exhibit A1
55 PN276
56 PN436
57 PN314
58 PN327
59 Annexure FC32 of Exhibit R1 at page 236
60 PN256
61 Exhibit A2
62 PN470
63 Paragraph 1 of Exhibit A2
64 Paragraph 3 of Exhibit A2 and PN473 to PN475
65 PN596
66 Paragraph 4 of Exhibit A2 and PN478
67 PN478
68 PN481
69 Annexure FC32 of Exhibit R1 at page 236
70 PN491 to PN495
71 Annexure FC32 of Exhibit R1 at page 238 and PN506
72 PN514 to PN519
73 PN523 to PN533
74 PN546 to PN547
75 PN506, PN 549-554
76 PN506 and PN549
77 See PN753 to PN757
78 PN760 to PN763
79 Paragraph 7 of Exhibit A2
80 Respondent’s outline of submissions at 4.3
81 As defined under s.7 of the Public Service Act 1999
82 PN941
83 Paragraph 6 of Exhibit R1 – Ms Cawthra’s statement
84 Exhibit FC4
85 Annexure FC11 of Exhibit R1 at page 151
86 Annexure FC29 of Exhibit R1 at page 151
87 PN952
88 PN942 and paragraph 37 of Ms Cawthra’s statement(Exhibit R1), see also paragraph 2 of Annexure FC29 of Exhibit R1
89 PN959
90 Paragraphs 50(b)(i) to (iii) of Ms Cawthra’s statement- Exhibit R1
91 PN959
92 PN1011
93 Paragraph 51 of Ms Cawthra’s statement- Exhibit R1
94 Paragraph 55 of Ms Cawthra’s statement- Exhibit R1
95 PN960 to PN962
96 PN981
97 Paragraph 42 of Ms Cawthra’s statement – Exhibit R1
98 Annexure FC31 to Exhibit R1at page 235
99 Paragraph 45 of Ms Cawthra’s statement – Exhibit R1
100 Annexure A of Exhibit A1
101 Annexure BD73 of Exhibit R2 at page 645
102 Annexure BD1 of Exhibit R2 at page 10
103 The documents are listed at 3.2 of the Determination Report and at paragraph 8 of Ms Deegan’s statement- Exhibit R2
104 Annexure BD19 of Exhibit R2 at page 321
105 Annexure BD20 of Exhibit R2 at page 322
106 Annexure BD33 of Exhibit R2 at page 421
107 Annexure BD35 of Exhibit R2 at page 431
108 Annexure BD38 of Exhibit R2 at page 436
109 Annexure BD40 of Exhibit R2 at page 440
110 Ibid at page 442
111 Paragraphs 31 to 55 of Ms Deegan’s statement – Exhibit R2
112 Annexure BD41 of Exhibit R2 at page 443
113 Annexure BD43 of Exhibit R2 at page 447
114 Annexure BD57 of Exhibit R2 at page 517
115 Annexure BD58 of Exhibit R2 at page 576
116 Annexure BD59 of Exhibit R2 at page 578
117 Annexure BD62 of Exhibit R2 at page 592
118 Annexure BD63 of Exhibit R2 at page 596
119 Annexure BD64 of Exhibit R2 at page 598
120 Paragraph 56 of Ms Deegan’s statement – Exhibit R2, See also Annexure BD65 of Exhibit R2 at page 600
121 Annexure BD67 of Exhibit R2 at page 604
122 Annexure BD68 of Exhibit R2 at page 605
123 Ibid at page 606
124 Annexure BD69 of Exhibit R2 at page 623
125 Annexure BD70 of Exhibit R2 at page 625
126 Annexure BD71 of Exhibit R2 at page 626
127 Annexure BD70 of Exhibit R2 at page 629
128 Ibid at question 8 on page 631
129 Annexure BD72 of Exhibit R2 at page 642
130 Paragraph 66 of Ms Deegan’s statement – Exhibit R2
131 PN1362 to PN1370
132 PN1368
133 Annexure BD73 of Exhibit R2 at page 652
134 Ibid
135 Annexure FC8 of Exhibit R1 at page 115
136 Annexure FC4 of Exhibit R1 at page 18
137 Respondent’s written closing submissions at 4.7, See also Annexure BD73 of Exhibit R2 (Determination Report) at page 656
138 This is the ‘dummy application’ referred to in Mr Rahman’s affidavit in the Federal circuit Proceedings- see Annexure FC38 of Exhibit R1 at page at page 438, see also PN122 to PN125
139 Point 2.5 of the applicant’s written closing submissions
140 Exhibit A1 at paragraph 7
141 Ibid at paragraph 10
142 As is then existed
143 (1995) 62 IR 371
144 (1995) 131 ALR 197, (1995) 62 IR 107 at 116
145 As per Moore J inWalton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685
146 Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 (unreported, Hatcher VP, 10 June 2014) [62]; citing B, C and D v Australian Postal Corporation (2013) 238 IR 1 [36].
147 See paragraphs 2.6 to 3.4 of the applicant’s written closing submissions
148 Paragraph 6.4 of the respondent’s written closing submissions in reply
150 Annexure BD73 of Exhibit R2 at page 648 of the Determination Report
151 PN1374 to PN1375
152 PN1375
153 PN1417 to PN1422
154 PN1411
155 Hearings for the production of documents ([2015] FWC 8074 and [2015] FWC 8281)
156 PN304 to PN305
157 Annexure BD19 of Exhibit R2 at page 321
158 Exhibit A4
159 Ibid
160 Annexure FC36 of Exhibit R1 at page 416
161 PN596, PN 673
162 Annexure BD14 at page 191
163 PN506
164 Annexure BD14 at page 191
165 Ibid at page 202
166 Ibid at page 208
167 Ibid at page 215
168 PN754, PN757
169 PN760
170 PN770
171 Annexure BD73 of Exhibit R2 at page 655
172 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26]
173 Annexure FC8 of Exhibit R1 at page 115
174 Ibid at page 121
175 Ibid at page 186
176 Annexure BD57 of Exhibit R2 at page 517
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